522 F.Supp.3d 734
C.D. Cal.2021Background
- Plaintiffs (Gilbert Garcia’s estate and his sons) sued Welltower OpCo and Sunrise (operators/manager of a senior living facility) and later added facility manager Calabrese, alleging elder abuse, wrongful death, and intentional infliction of emotional distress after Garcia contracted COVID-19 and died.
- FAC alleges failures in infection-control and PPE policies, inconsistent communications, resumption of group dining, exposure to infected staff/visitors, and delayed/insufficient responses leading to Garcia’s COVID-19 infection and death.
- Defendants removed to federal court asserting federal-question jurisdiction under the PREP Act (and diversity), and moved to dismiss; plaintiffs moved to remand to state court and opposed dismissal.
- The court took judicial notice of certain government materials, accepted HHS OGC advisory guidance (including Advisory Opinion 21-01) as persuasive, and concluded the PREP Act can completely preempt state-law claims when applicable.
- Holding: the court denied remand, found Welltower and Sunrise are “covered persons”/program planners and that plaintiffs’ allegations fall within the PREP Act scope, and granted defendants’ Rule 12(b)(6) motion dismissing the FAC on PREP Act immunity grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PREP Act completely preempts state-law claims | PREP Act does not cover infection-control policies or negligent care unrelated to physical administration of countermeasures; thus removal improper | PREP Act is a complete preemption statute (OGC Advisory Opinion) covering claims "relating to" covered countermeasures | Court held PREP Act provides complete preemption and denied remand |
| Whether defendants are "covered persons" and plaintiffs’ allegations fall within PREP Act scope | Defendants are not program planners or qualified persons and their alleged conduct is outside the Act’s scope | Defendants supervise/administer infection-control programs and their alleged PPE/protocol decisions relate to covered countermeasures | Court held Welltower and Sunrise are covered persons and allegations fall within PREP Act |
| Whether PREP Act immunity supports dismissal under Rule 12(b)(6) | PREP Act inapplicable; immunity is an affirmative defense and cannot justify dismissal at pleading stage | PREP Act immunity is apparent on the face of the FAC and pleads plaintiffs out of court | Court granted dismissal under Rule 12(b)(6) on PREP Act immunity grounds |
| Whether case must be remanded due to joinder of non-diverse defendant (Calabrese) | Calabrese is California citizen and destroys diversity jurisdiction; remand required | Joinder of Calabrese is improper and removal on federal question suffices; court may retain jurisdiction | Court declined remand and found joinder factors counseled against remand |
Key Cases Cited
- Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (complete-preemption doctrine converts preempted state claims into federal claims)
- Rivet v. Regions Bank of La., 522 U.S. 470 (1998) (once completely preempted, a state claim arises under federal law)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency interpretations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretations depends on persuasiveness)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (apply Twombly standards to determine plausibility)
- Beneficial Nat. Bank v. Anderson, 539 U.S. 1 (2003) (federal-question jurisdiction principles)
- Jones v. Bock, 549 U.S. 199 (2007) (affirmative defenses may justify dismissal when apparent on face of complaint)
- Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992) (party seeking removal bears burden to establish federal jurisdiction)